N/A can’t make laws to curtail the power of C-Appeal, S-Court

On November 26, 201512:44am

Dr. Alex Izinyon, SAN

The legal hullabaloo and brouhaha generated by the Order of Stay of Proceedings by the Supreme Court in the Saraki’s case among legal pundits, scholars and laymen having regards to the provision of the Administration of Criminal Justice Act, 2015, simply called ACJA hereunder, demand a closer look. Since the substantive matter is subjudice, but the Order of stay of proceeding already granted which has generated this storm in a tea cup can be espoused without any qualms.

I am not unmindful of the virulent salvo first thrown by my most learned brother Femi Falana, SAN, re-echoed by others on this subject matter against the Supreme Court for granting such order.

I beg to differ having regards to the settled principles of law that cannot be re-written or jettison over board on the façade of Section 306 of ACJA rendering the power of the Supreme Court as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) nebbish.

Section 6 of the said Constitution provides for the judicial power vested in the Courts. Section 6 (6) specifically states that such judicial powers vested in the Section shall “extend not withstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law.”

Section 1(3) of the Constitution provide for the supremacy of the Constitution and if any other law (including any subsequent Law by the National Assembly) is inconsistent with the provision of the Constitution such law shall be void to the extent of the inconsistency. Section 4 (8) of the Constitution of the Federal Republic of Nigeria, 1999 prohibits ouster or purported outer. It states:

“S. 4(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

Section 306 of the Administration of Criminal Justice Act, 2015 (ACJA) states: “An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.” (Underlining mine). From the above one does not need a crystal gazer to decipher that section 306 is a clear ouster or purported ouster contrary to section 4(8) of the Constitution and therefore void to the extent of that inconsistency.

Any law made by the National Assembly that is inconsistent with the Constitution albert ouster has already kissed the canvas of inconsistency provision vide Section 1 (3), Section 4(8) of the Constitution. See A-G ABIA STATE V. AG FEDERATION (2002) 6 NWLR (PT. 763) 263.

Only recently Kolewole J. of the Federal High Court in LABOUR PARTY V. INEC OR FHC/ABJ/CS/399/2011 DELIVERED ON 21/7/2011 did not hesitate to strike down Section 140(2), Section 141 of the Electoral Act, 2010 which sought to regulate the Election Tribunal or Court on Order to make in course of its Orders or decision in an Election matter before it.

Now, Section 494 of ACJA, the definition section defines court to include Federal Courts, the Magistrate Court and the Federal Capital Territory or Area Court presided over by the Legal Practitioners. I will not deal with the issue of whether the Code of Conduct Tribunal is a court within the contemplation of the Constitution under Section 6(5) in the absence of any amendment to the said section as was done for the National Industrial Court pursuant to 3rd Alteration, No. 3 which now listed the National Industrial Court as superior Court under Section 6 of the Constitution. See Section 6(5)(cc).

 Stay of proceedings

But the issue here is the Order of the stay of proceedings having regard to section 306 of the ACJA. By the definition section in Section 494 of ACJA, using the ejusdem generis rule, “the Court” referred in Section 306 are those listed in Section 494 of ACJA. At the risk of over simplicity, Oxford Dictionary of English defines “the” as denoting one or more people or things already mentioned or assumed to be common knowledge.

It is a definite article. Therefore “the Court” used in Section 306 of ACJA refers to the court mentioned in Section 494 of ACJA, viz the Federal Courts which are the Federal High Court, High Court of the FCT, Magistrates Court and Area Courts manned by legal practitioners in the FCT. These are court of first instance or trial court and cannot be interpreted to include Court of Appeal or the Supreme Court.

After all the express mention of one thing implies the exclusion of other or of the alternative – “expressio unius est exclusio alterius.” The power of the Supreme Court as the final court in the judicial hierarchy to order a stay of proceeding especially against the background of an undertaking by prosecution that they will not undermine the substratum of the appeal cannot be said to be illegal by virtue of section 306 of ACJA.

BY the definition section in Section 494 of ACJA, using the ejusdem generis rule, “the Court” referred in Section 306 are those listed in Section 494 of ACJA. At the risk of over simplicity, Oxford Dictionary of English defines “the” as denoting one or more people or things already mentioned or assumed to be common knowledge. It is a definite article.

Therefore “the Court” used in Section 306 of ACJA refers to the court mentioned in Section 494 of ACJA, viz the Federal Courts which are the Federal High Court, High Court of the FCT, Magistrates Court and Area Courts manned by legal practitioners in the FCT.

These are court of first instance or trial court and cannot be interpreted to include Court of Appeal or the Supreme Court. After all the express mention of one thing implies the exclusion of other or of the alternative – “expressio unius est exclusio alterius.”

The power of the Supreme Court as the final court in the judicial hierarchy to order a stay of proceeding especially against the background of an undertaking by prosecution that they will not undermine the substratum of the appeal cannot be said to be illegal by virtue of section 306 of ACJA.

By the simple and elementary doctrine of separation of power flowing from the French Jurist Montesquieu the National Assembly lacks the power under the Constitution to make any laws, to curtail the power of the Court of Appeal or Supreme Court vested under the Constitution.

To argue that section 306 of ACJA oust the Supreme Court to order stay of proceeding is contrary to the separation of powers which has been settled in legion of cases by the Supreme Court. See A-G ABIA V. A-G FEDERATION (2002) 6 NWLR (PT. 763) 264; UGWU V. ARARUME (2007) 12 NWLR (1048) 367.

 Indeed to interpret Section 306 of ACJA as applicable to the Supreme Court is to render nebbish the inherent power of the Supreme Court.

Inherent power

 It must be noted that not even under the Military gladiators was this countenanced as the Supreme Court ventured to castigate and lampoon legislative judgment as seen in LAKANMI V. AG WEST (1971) ALL NLR (PT. 1) 201, though it was described as a banana peel (Prof. Abiola Ojo) as it was rendered nugatory by a subsequent Decree, but the legal bravery of the Supreme Court in the face of the military tyranny was commendable and salutable.

In England, the famous jurist and legendary legal icon Lord Denning, MR in SEAFORD COURT ESTATES LTD V. ASHER (1949) 2 KB 481 opined strongly that decision which a Court or Tribunal will arrive at are not such matter that any parliament however technicality empowered it may be that can completely provide for.

In 1981 the Supreme Court cut down such invasion by the National Assembly which sought to curtail or regulate the powers of the Court in the absence of a Principle Enactment or Act.

This was the case of PAUL UNONGO V. APER AKU & ORS. (1981 – 1990) LRECN 1, where it reiterated the doctrine of separation of powers, the independence of the Judiciary and frown at ouster and maintained the Supreme Court has inherent powers to control its internal proceeding pursuant to Section 6(6) of the 1979 Constitution and that the National Assembly lacks the powers to legislate on matter of rule of practice and procedure for election petition in the absence of any principal enactment.

However with the advert and delay in electoral litigation in order to take care of this delay in electoral litigations, the 1999 Constitution was amended spelling out the lifespan for electoral litigations such as 180 days from the date of declaration of result for the tribunal to conclude and deliver Judgment and 60 days from the date of delivering of such judgment on those on appeals within which judgment must be delivered.

See Section 29 of the 1st Alteration and Section 285 of the Constitution. The Supreme Court has no hesitation in giving its legal imprimatur to this Constitutional amendment in the case of ANPP V. GONI (2012) 2 LRECN 440 the first case to test the validity of the lifespan of electoral litigation.

Read more at: https://www.vanguardngr.com/2015/11/na-cant-make-laws-to-curtail-the-power-of-c-appeal-s-court/

Read more at: https://www.vanguardngr.com/2015/12/na-cant-make-laws-to-curtail-the-power-of-c-appeal-s-court-2/